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BAV acknowledges the kind permission of the Building Commission in allowing the reproduction of the following material.

Contracts entered on or after 30 March 2007

You may apply for adjudication if you have served a valid payment claim on the respondent and one of the following circumstances applies to you. 

  • The respondent has provided a valid payment schedule and the amount that the respondent proposes to pay (the 'scheduled amount') is less than the amount you claimed on the payment claim (the 'claimed amount'). If so, you have 10 business days after receiving the payment schedule to lodge your application.
  • The respondent has provided a valid payment schedule but has failed to pay any or all of the 'scheduled amount' by the due date for payment. If so, you have 10 business days after the due date for payment to lodge your application.
  • The respondent has not provided a valid  payment schedule and has not paid any or all of the 'claimed amount' by the due date. If so, you have 10 business days to notify the respondent in writing that you will be applying for adjudication and let them know that they have two business days after receiving your notice to provide a payment schedule. You have seven business days, after notifying the respondent, to lodge your application.

If you miss the deadline for lodging your application, you may need to go to court to recover the amount due.

To make an application, you need to take the following steps:

Step 1

Prepare the application

Your application must identify the payment claim and the payment schedule to which it relates. You should provide all the information that you want the adjudicator to take into consideration and attach copies of relevant documents.

The Building Commission has prepared a sample form for you to fill in or use as a guide.

For more information, see Fact Sheet 5 Applying for Adjudication

Step 2

Lodge it with an Authorised Nominating Authority (ANA)

You must lodge the application with an ANA, which is an organisation authorised by the Building Commission to nominate adjudicators under the Act.

BAV is an Authorised Nominating Authority

Step 3

Serve a copy on the respondent

You must serve a copy of the adjudication application on the respondent. The Act provides several ways to 'serve' a document. You can choose from the following methods.

  • Deliver it in person. It is 'served' when the respondent receives it.
  • Lodge it during business hours at the respondent's ordinary place of business. It is 'served' when it is received at that address.
  • Send it by post to the respondent's ordinary place of business. It is 'served' two business days after the day on which you posted it.
  • Send it by fax to the respondent's ordinary place of business. It is 'served' at the time it is received, unless it is received after 4pm. If it is received after 4pm, it is taken to have been 'served' on the next business day.
  • Provide it in any other manner specified in the contract.

Step 4 

Participate in adjudication

The adjudicator must notify you within four business days that she or he accepts the application. If not, you may withdraw the application and make a fresh one to the ANA.

If the respondent prepares a response to your application, you will receive a copy. The adjudicator may request further submissions from you or the respondent, carry out an inspection or call a conference.

For more information, see Fact Sheet 6 The Adjudication Process

Step 5

Receive adjudicator's decision

The adjudicator has 10 business days (or up to 15 business days, if you agree) to determine the amount that the respondent must pay you (the 'adjudicated amount'), when it should be paid and the rate of interest payable.

The decision will be in writing and will include the reasons for the decision and the basis on which any amount or date has been decided. 

The adjudicator may require full payment of his/her fees before releasing the determination. If the respondent does not pay his/her share, you may pay the adjudicator's fees in full and the respondent's share will be added to the determined amount. 

If the adjudicator fails to make a decision in time, you may withdraw the application and make a fresh one to the ANA.

Step 6

Get paid, apply for a review or go to court

If the adjudicator determines that the respondent is required to pay you some money, the respondent must pay it within five business days after they received a copy of the decision or a later date determined by the adjudicator. 

In some circumstances, the respondent may be able to apply for a review of the adjudicator's determination (an 'adjudication review').

If you are not satisfied with the adjudicator's determination, you may be able to seek an adjudication review.

If the respondent neither pays you nor applies for an adjudication review, you have a right to take either or both of the following actions.

  • Go to court to recover the money, plus interest, as a debt due. To do this, you ask the ANA to issue an Adjudication Certificate, which you then file in a court with an affidavit saying that the respondent has not paid any or all of the adjudicated amount.
  • Suspend work or the supply of goods or services. You must give the respondent three business days notice in writing. Your notice must say that it is made under the Act.

For more information, see Fact Sheet 11: What happens if the respondent doesn't pay

 

 

Building Adjudication Victoria Inc.

Level 3, 296 Collins St.
Melbourne Vic. 3000

t : 03 9663 4722
f : 03 9663 4799
bav @ rodlaw.com.au

 

 

 

 

 

 

 
   
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